KOFI ALIAS FIOZO vs. THE STATE [1965]DLHC1818

Date	1965-01-29
Suit No.
Citation No.	[1965]DLHC1818

LASSEY J.

T. D. BRODIE-MENDS FOR THE APPELLANT.

F. K. SARKODEE STATE ATTORNEY FOR THE RESPONDENT.

[1965]DLHC1818
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													<main id="main" class="content" style="min-height: 60rem" >KOFI ALIAS FIOZO<o:p></o:p>&nbsp;vs. <o:p></o:p>THE STATE <o:p></o:p>[HIGH COURT, CAPE COAST]<o:p></o:p>[1965] GLR 28<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
29 JANUARY 1965.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

T. D. BRODIE-MENDS FOR THE APPELLANT.<o:p></o:p>

F. K. SARKODEE, STATE ATTORNEY, FOR THE
RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

LASSEY J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF LASSEY J.<o:p></o:p>This
appeal which has been brought against the conviction of the appellant raised a
question of law. The appellant was convicted at the Circuit Court, Cape Coast,
on 9 November 1964 for smoking Indian hemp, contrary to sections 48 (a) and 57
of the Pharmacy and Drugs Act, 1961,1 and was sentenced to three years’
imprisonment. The appellant who was eighteen years old pleaded guilty to the
offence.<o:p></o:p><o:p>&nbsp;</o:p>Leave was
at first granted to the appellant to appeal against the sentence of three years
imposed on him by the trial court, but learned counsel for the appellant later
conceded that the sentence imposed was duly authorised by law and accordingly
abandoned the appeal on that ground. The question of law raised and argued on
behalf of the appellant was that the entire proceedings before the trial
circuit court were a nullity on the ground that the personal consent of the
Attorney-General was not sought and given before prosecution of the appellant
was begun under the relevant section of Act 64.<o:p></o:p><o:p>&nbsp;</o:p>At the
hearing of the application for leave to appeal learned counsel for the
appellant argued that the proceedings before the circuit court were illegal
because the Attorney-General’s fiat was never obtained. It was then not
suggested that the personal consent of the Attorney-General was never obtained;
it was never the case of the appellant that although the fiat was available
before the trial court, yet the personal consent of the Attorney-General was
not given as required by the relevant section. However, at the hearing of the
appeal learned counsel submitted that as the personal consent of the
Attorney-General was not obtained before proceedings started the summary
conviction by the learned circuit judge was wrong.<o:p></o:p>Learned
counsel seemed to have found support for his contention in the judgment of the
Supreme Court in the case of Mensah v. Commissioner of Police.2<o:p></o:p><o:p>&nbsp;</o:p>Before I
examine this important controversial point of law I must first consider whether
this appeal was properly brought before me; in other words, whether the
appellant has a right of appeal in view of his conviction after a plea of
guilty. Section 324 (3) of the Criminal Procedure Code, 1960,3 provides, “No appeal
shall be entertained against conviction by an accused person who has pleaded
guilty and has been convicted on his plea.” The section is mandatory and
contains no proviso making exceptions for the exercise of the right of appeal
in cases where, for example, the charge is bad in law or where the plea of
guilty is no plea at all because the particulars do not constitute any offence
known to the law for the time being in force.<o:p></o:p>Notwithstanding
the mandatory provision of the section just referred to I am of the view that
in cases where a plea of guilty has been recorded, the appellate tribunal can
entertain and hear an appeal against conviction if it appears on the face of
the record that:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(a) The
appellant who was not represented at the trial did not understand or appreciate
the nature of the charge or charges, or did not intend to admit that he was
guilty; or<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(b) Upon
the admitted facts he could not in law have been convicted of the offence
charged, especially as in the instant case where some statutory condition which
has to be performed before the charge was laid had not been compiled with.<o:p></o:p><o:p>&nbsp;</o:p>